Byrne v Fingal County Council

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice McKechnie
Judgment Date02 August 2001
Neutral Citation[2001] IEHC 141
Docket Number[2001 No. 434 J.R.],434 JR/2001
Date02 August 2001

[2001] IEHC 141

THE HIGH COURT

434 JR/2001
BYRNE v. FINGAL CO COUNCIL
JUDICIAL REVIEW

BETWEEN

DEREK BYRNE
APPLICANT

AND

FINGAL COUNTY COUNCIL
RESPONDENT

Citations:

CITY & COUNTY MANAGEMENT (AMDT) ACT 1955 S2(9)

CITY & COUNTY MANAGEMENT (AMDT) ACT 1955 S2(10)

HOUSING ACT 1988 S27

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S39(1)

CITY & COUNTY MANAGEMENT (AMDT) ACT 1955 S2

COOKE V WALSH 1984 IR 710

MURPHY V ROCHE 1987 IR 106

MCDAID V SHEEHY 1991 1 IR 1

LOCAL GOVT (DUBLIN) ACT 1993

HOUSING (TRAVELLERS ACCOMODATION) ACT 1998

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(3)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S39

CONSTITUTION 1937

CITY& COUNTY MANAGEMENT (AMDT) ACT 1955 S2

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S4(1)(b)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S3

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S39

LOCAL GOVT ACT 1991 S45

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S24

O'LEARY V DUBLIN CO COUNCIL 1988 IR 150

ROUGHAN V CLARE CO COUNCIL UNREP BARRON 18.12.1996 1997/6/2213

CITY& COUNTY MANAGEMENT (AMDT) ACT 1955 S2(1)

CITY& COUNTY MANAGEMENT (AMDT) ACT 1955 S2(3)

CITY& COUNTY MANAGEMENT (AMDT) ACT 1955 S2(7)

O'REILLY V O'SULLIVAN UNREP SUPREME 26.2.19971997/11/3523

CITY & COUNTY MANAGEMENT (AMDT) ACT 1955 S3

HOUSING ACT 1988 S13

WICKLOW HERITAGE TRUST LTD V WICKLOW CO COUNCIL UNREP MCGUINESS 5.2.1998

TENNYSON C CORPORATION OF DUN LAOGHAIRE 1991 2 IR 527

KEEGAN, STATE V STARDUST COMPENSATION TRIBUNAL 1986 IR 642

WILKINSON V DUBLIN CO COUNCIL 1991 1 ILRM 605

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S20

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S43(1)(e)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S43(1)(f)

GLENCAR EXPLORATION V MAYO CO COUNCIL 1993 2 IR 237

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S19(2)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S19(3)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 SCHEDULE 3

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S21

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S21(A)

FINN V BRAY URBAN DISTRICT COUNCIL (UDC) 1969 IR 169

HUNTSGROVE DEVELOPMENTS V MEATH CO COUNCIL 1994 2 ILRM 36

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1990

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 PART IV

CENTRAL DUBLIN DEVELOPMENT ASSOCIATION V AG 1975 109 ILTR 69

MALAHIDE COMMUNITY COUNCIL V FINGAL COUNTY COUNCIL 1977 3 IR 303

BLESSINGTON HERITAGE TRUST LTD V WICKLOW CO COUNCIL 1999 4 IR 571

MCGARRY, AG V SLIGO CO COUNCIL 1989 ILRM 768

KEOGH V GALWAY CO COUNCIL (NO 1) 1995 1 ILRM 141

MCCANN V GALWAY CORPORATION UNREP CARNEY 15.11.1994 1995/3/1062

XJS INVESTMENTS LTD, RE 1986 IR 750

Synopsis:

PLANNING AND ENVIRONMENTAL LAW

Development plan

Interpretation - Traveller accommodation - Whether emergency provisions improperly invoked - Whether proposed accommodation materially contravened development plan - Whether local authority failed to consult local residents - City and County Management (Amendment) Act, 1955 section 2(9) & (10) - Housing Act, 1988 section 28 - Local Government (Planning and Development) Act, 1963 section 26(3) (2001/434JR - McKechnie J - 2/8/01)

Byrne v Fingal County Council - [2001] 4 IR 565 - [2002] 2 ILRM 321

Facts: The applicant was a resident of an area which housed a number of traveller families. The local authority proposed to increase the number of traveller families in the area. The applicant initiated judicial review proceedings claiming that there had been a failure by the local authority to consult the local community, that the proposed development did not constitute emergency accommodation and the emergency procedures contained in City and County Management (Amendment) Act, 1955 ("the 1955 Act") had been improperly invoked. The respondent denied the claims of the applicant and asserted that it was entitled to rely upon section 2 of the 1955 Act in order to proceed with the proposed accommodation.

Held by Mr. Justice McKechnie in making the following order. If a local authority proposed to develop a site for its traveller accommodation programme the local residents were entitled to become involved in a process of consultation. Fingal County Council had not complied with its own development plan in the manner it had engaged in the consultative process. The intended works could not proceed without this commitment being satisfied. It was not necessary to consider the other matters raised.

1

Mr. Justice McKechnie on the 2nd day of August, 2001.

2

1. On the 28th June, 2001 the Applicant obtained leave from this Court (Kearns J.) to seek, by way of an application for Judicial Review, the reliefs therein sought and did so on the grounds therein specified. On the day following, an Injunction of an Interlocutory nature was granted which injunction restrained the Respondent from continuing with the impugned activity until the determination of the within proceedings. Thereafter, with the required documentation having been exchanged and following a full hearing of the application itself, this judgment, at least to High Court level, completes the litigation between the parties and does so within the time frame herein mentioned.

3

2. The reliefs sought, are numerous in number and wide-ranging in consequence, but in effect can be condensed as follows:-

4

(i) A Declaration (a) that the proposed development at Meakstown and (b) the failure, in respect thereof, to consult with the local community, both individually and collectively, amount to a material contravention of the Respondent's development plan;

5

(ii) A Declaration, that the purported exercise of the emergency procedures provided for, in Section 2 (9), and 2 (10), of the City and County Management (Amendment) Act, 1955as amended by Section 27 of the Housing Act 1988

6

(a) amounts to an abuse of a discretion, and

7

(b) was invoked, pursued and carried out for an improper purpose;

8

(iii) A Declaration that the proposed development does not constitute the provision of emergency accommodation and

9

(iv) A Declaration that, if section 2 (9) and 2 (10) of the aforesaid Act of 1955 as amended, permit the circumvention of Section 39 (1) of the Local Government (Planning and Development) Act, 1963then, in such circumstances, the section constitutes and unwarranted and unlawful interference with the Applicant's property rights and accordingly is unconstitutional.

10

3. The Respondent Council in its Statement of Opposition, denies each and all claims advanced on behalf of the Applicant and asserts that in the circumstances prevailing the Manager of its Council, was factually entitled to and legally justified in relying upon Section 2 of the 1955 Act.

11

4. At the commencement of this hearing and following submissions made by Counsel for the respective parties, I decided, in accordance with well established jurisprudence, that the Applicant's claim, insofar as it challenged the constitutionality of the relevant provision of the 1955 Act, should not be embarked upon and in fact should be deferred until such time as the other issues had been determined. Depending on this Court's decision on the statutory claims, a hearing of the constitutional issue may or may not then become necessary, See Cooke -v- Walsh [1984] I.R. 710, Murphy -v- Roche [1987] I.R. 106, McDaid -v- Sheehy [1991] 1. I.R. 1

12

5. The factual background to this case, not being in dispute, can be stated shortly as follows:-

13

(a) The Applicant, for upwards of 20 years and more has been a resident of No. 4 Meakstown Cottages, Meakstown, in the County of Dublin. There are in all about 37 cottages at this location and for the purposes of these proceedings Mr. Byrne is both a nominee of and a representative for his neighbours.

14

(b) Immediately adjacent there are certain lands which are registered on Folio No.'s 99948F and 11027F and which are in the ownership of Fingal County Council. Such cottages and such lands are accessed solely by the same cul de sac road.

15

(c) For the past 11 years, approximately, there has been a halting site at Cruiserath, Mulhuddart, Co. Dublin which presently accommodates about 28 travelling families. Arising out of High Court proceedings, Dublin County Council gave an undertaking to the Supreme Court in 1990 that such accommodation was and would only be of a temporary nature. Since the Local Government (Dublin) Act, 1993Fingal County Council is now the responsible local authority. Notwithstanding such undertaking this site was still in use, when in early 2001 a number of individuals instituted fresh proceedings against the Council, seeking I believe, a mandatory injunction directing the Respondent to remove the travelling families from this halting site and forthwith to cease, such user thereof. On several occasions this application has been adjourned and presently it stands listed for the 1st October of this year so that the trial judge can review the progress made by the Council on proposals submitted to him for a resolution of this matter.

16

(d) These proposals, probably in the nature of an undertaking, and certainly in written form, were given to and lodged with the court on the 3rd of May and were to the effect that, the families at Cruiserath would be relocated. Of the total number then within the site, it was proposed that 11 families, within two months from the date thereof, would be transferred to a new site at Meakstown, this to be constructed on the lands of the Council as above mentioned.

17

(e) Prior to this said 3rd day of May, the Manager by Order dated 21st March, 2001 approved of a recommendation for this proposed development, which recommendation recited that, through their spokesperson, Mr. Francie O'Donnell, 11 families presently located at Cruiserath had indicated their willingness to move to this new location. In addition the proposed accommodation, in the Order, was described as "emergency accommodation" with the...

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